Tax avoidance: the reputational damage to our profession

I suspect that the accountancy and tax profession will look back on June 2012 with mixed feelings, says Rebecca Benneyworth MBE.

The campaign by The Times newspaper obviously started some time ago, as it would take a little time to build up such a body of material on the various aspects of tax avoidance that the newspaper sought to bring to the public’s attention.

Some will be pleased that this thorny issue has been aired, and in spite of a fair bit of hot air last week, what the paper did manage to do was convey the outline of some quite complex avoidance schemes in an intelligible way. So my first stop is to congratulate those journalists who must have spent many long hours researching and trying to understand some of the schemes.

In the early part of the week I was most concerned about the reputational damage to the accountancy and tax profession. I do not want to hear the word “accountant” be spoken with a sneer by the wider public; I dread the profession being labelled with the same sort of tag as “ambulance chasing” claims handlers. We have studied hard and hold high professional standards, and it does no good for the wider public to see us as grasping or cheating (or at least enabling and supporting that behaviour by our clients). We have an extremely important role to play, both as business advisers, and in assisting in the day-to-day delivery of the tax system, whether through Self Assessment, or by supporting a very wide range of businesses with their tax obligations – VAT, payroll etc. which without doubt they would not be able to manage unaided. The tax authority does not have the staff or expertise to take this task on.

We also have a role to play in supporting the government to bring forward good and workable tax legislation. We can only keep up the pressure on that score – and sometimes we are heard, and sometimes we are not. So I am very concerned about the reputational damage to our profession as this could take years to repair – if public perception of us can be restored.

I have so far resisted the “M” word. Last week gave me time to think about the moral issues, and on reflection I have changed my stance. It is not my (or indeed anyone else’s job) to make moral judgements about my clients. Provided they behave within the law, and do not conceal income that is taxable I can do my job. The moral issue is a personal one. It is for everyone to consider whether, in times of national hardship, with families going hungry and losing their homes, it is right to seek to avoid tax in the ways that have been publicised. We have an example in that one individual, when challenged, and on reflection, decided that this was not an appropriate way to behave.

This does not mean that I have changed my approach to tax avoidance. It is not an area I intend to advise on, and I have no intention of ever getting involved in any of it. I would advise clients considering seeking advice about some of these schemes that they rarely work or rarely work for long, can end up costing an awful lot of money to get out of, and “mark your card” with HMRC, who must take account of that behaviour in any risk assessment they make.

So what should be the upshot of last week’s coverage? I believe that HMRC must redouble its efforts to get all of the schemes closed down – either through specific legislation or a GAAR (which is of course due next year). But it goes further than this. The tax authority must also apply resources to following up every case where tax avoidance schemes have been implemented to ensure that any outstanding tax due is collected. Those who have failed to implement the scheme properly should be pursued relentlessly. Schemes that have not worked should be identified and all of those implementing them should be promptly approached to collect the tax that is due.

So the light shines too on an under-resourced tax authority struggling to identify where to best apply their efforts. I suspect that last week has just pushed one area a bit higher up the agenda – and a good thing too.

Comments

Avoidance is not just fancy off-shore schemes

Roland195 | | Permalink

It can be as simple as incorporation to take advantage of lower corporate taxes or even using the flat rate scheme for VAT if you know it will be financially beneficial. Is this morally wrong?

I doubt many of us lose sleep at night over these areas but I struggle to understand any difference other than scale.  

 

 

 

ShirleyM's picture

Maybe I see things in too simplistic a way, but ...    6 thanks

ShirleyM | | Permalink

If you incorporate, or use an ISA, you are using those in a way the government intended. There are limits on ISA's, and also limits placed on withdrawing profits from limited companies without further tax being payable. FRS for VAT also has threshholds.

If you put money in a trust, and then immediately loan the money to yourself with no expectation of ever repaying it, no tax liability, and no limits, and then eventually (when you die) your children can use the accumulated 'loan' to reduce IHT, then personally, I think that particular use of trusts was never intended, and is artificial and contrived avoidance.

I don't expect everyone to agree with me, but that is my take on the subject.

I completely agree    2 thanks

galmatthews28 | | Permalink

I completely agree with the reasoned analysis written above. I am heartily glad that some other accountants are willing and able to stand up and say that they don't want to take part in schemes of this nature!

I have long been worried about schemes of this nature (i.e. loaning money to trusts and the money then ending up back in the company). I believe that the hidden costs, e.g. 'busting the trust' or P11d taxes due on loans, mean that the scheme never end up being as 'tax free' as they are made out to be. In addition, I can't think how participating in and/or encouraging these schemes does not 'mark' your card with HMRC. I am relieved that others think so too!

johnjenkins's picture

No doubt    3 thanks

johnjenkins | | Permalink

the people behind the more complex schemes are already working on even more complex manipulations because that's what they are paid a lot of money to do.

I remember Paul McCartney being asked some years ago whether he would be putting his money abroad and his reply was, "My Accountant has informed me that I wouldn't be able to spend the money I have got never mind the money I am going to earn". There's probably many more that can say that, so what's the driving force. Is it cleverdicky Accountants, lawyers etc trying to earn a few bob? Is it the thought of their money being wasted? Surely not plain greed.

runningmate's picture

Politicians    2 thanks

runningmate | | Permalink

I do feel that over recent years governments have proved themselves impotent in many respects.  They have shown that they are unable, for example, to control the national economy, or to get banks to do what the government wishes (even where the government largely owns the bank), or to protect the poor and the weak, etc.  Some may say this is because the government (of whatever political persuasion) never really intended to do those things.

 

However when it comes to taxation the government is in a position to make 'the rules' and to put substantial and effective resources into enforcing them.  But the government's achievements - or lack of achievements - in this area have been lamentable.

 

And then politicians have the cheek to blame others - even naming individual taxpayers - for a failure on their part to pay 'the right amount' of tax and to do whatever it is that the government feels is 'morally right'.

 

What would be 'morally right' would be for government to make appropriate tax rules and properly enforce them on everybody.  The responsibility for fair taxation falls on the government - nobody else.

 

RM

bookmarklee's picture

Implications of simply arging that tax avoidance is legal    1 thanks

bookmarklee | | Permalink

Nicely put Rebecca. I agree with you and would add some related observations:

a) What is legal is not always moral or right. Apartheid was never moral or right even when it was legal. Slavery is the same. Some would argue that searching for ways to get around the clear (or the most likely intent of Parliament) is not moral or acceptable even if it is done in such a way as to attempt to keep on the right side of the relevant tax laws.

b) Despite attempts to confuse the issue: Using allowances, reliefs and exemptions in the way intended when they were introduced is NOT generally comparable with using 'abusive' tax avoidance schemes. Thus those who invest through ISAs are not comparable with investors in the K2 tax avoidance scheme.

c) Tax schemes of the type entered into by Jimmy Carr have been designed to allow the investors/taxpayers who can afford to use them to benefit from reliefs, allowances and exemptions in ways OTHER than those for which they exist. Tax Counsel says the scheme and thus claims for tax relief/refunds are LEGAL but until HMRC confirm this to be the case the position is in doubt. Often it takes years to resolve the issue. 

d) I have no patience with those who seek to find ways to exploit unintended gaps in the legislation or who find someone willing to agree with an extreme interpretation of tax law that allows them to promote an abusive tax scheme. It is a poor argument in my view to claim that the law should be so tightly drawn as to prevent anyone ever being able to do this. This is the way of draconian law that unfairly penalises the majority who would never have exploited the old rules anyway. 

e) I welcome the prospective introduction of a GAAR (General Anti-Abuse Rule) but with some reservations. It will, sadly, create a host of uncertainties for all of us. There will still be some aggressive promoters of tax schemes who assert the GAAR does not apply to them - and it will be years before anyone can prove to the contrary.

Mark

bookmarklee's picture

oh - and to the unnamed Big4 accountant quoted in The Telegraph    2 thanks

bookmarklee | | Permalink

Apparently he/she said:

 

“Many accountants have been sued by their clients for not getting them into such schemes,” he said.

“Some advisers are very worried about being hit with a professional negligence claim for blocking a client’s entry into a scheme. I know of two such cases at the moment, one for around £500,000.

“We’re damned if we do, and damned if we don’t.”

In my view the unnamed accountant is WRONG and is either being misquoted or is intending to mislead as, I would imagine, he/she earns their living promoting ‘abusive’ tax schemes. It is thus in their interest to scare accountants into thinking they are at risk if they don’t promote schemes to their clients. What rot!

As someone who used to act as an expert witness in professional negligence claims and who still lectures on ‘How to avoid negligence claims’ I know a thing or two about such issues.

I doubt any accountants have been sued for failing to advise clients about ‘abusive’ schemes. The barriers to succeeding in such a claim are VERY high. The claimant would need to prove that:
1 – Their accountant did not do what a reasonably competent accountant would have done. In my view, reasonably competent accountants are well aware of the generic risks and downsides of ‘abusive’ schemes and do not present them to clients as so few end up actually proceeding through to completion

2 – That the client would and could have done all that would have been required to undertake the scheme

3 – By not doing so they have suffered a quantifiable loss that can be attributed to their accountant’s neglect.

I just don’t see it happening and dispute the implication that any reasonably competent accountant has been successfully sued for failing to encourage a client to enter into an ‘abusive’ scheme.

Mark

ShirleyM's picture

I, for one, agree with you Mark    3 thanks

ShirleyM | | Permalink

I also thank Rebecca for explaining exactly how I feel about the subject.

The really sad part is that everyone pays the price for these schemes in the following ways:

  • tax revenue lost resulting in others paying more
  • extra legislation that applies to everyone
  • the costs to the country of closing these schemes
  • the costs of court action to try and recover some lost tax
  • the discontent it creates resulting in others jumping on the bandwagon or using the example as an excuse to fiddle their own taxes

So, there may be a few winners, but there are lots & lots of losers.

 

johnjenkins's picture

How does a very rich

johnjenkins | | Permalink

concern tell the government it doesn't like the way it is spending it's money? The answer is simple, it legally doesn't give it to the government. So we have a system whereby voters vote the government of the day and the rich dictate the policies. Problem is, as we have now, when governments don't adhere to the policies of the rich.

So is there a REAL difference between a painter doing cash privates and not declaring it, or others who use legal (abusive, as Mark puts it) schemes to reduce their tax bill? Morally probably not, but legally yes and I would presume that is where HMRC have a difficulty.

We also now have a few definitions of the "RIGHT" amount of tax. We all know what should be meant by "right" but when HMRC, Government and tax payers all have a different view (I've actually had a prominent MP say and believe this) then we are in a pickle.

I don't believe that any rules, compliance etc. will make any difference. It is the morallity of the people that will make or break our future civilisation (bit deep I know, but look around).

listerramjet's picture

the lunatics have taken over the asylum?

listerramjet | | Permalink

am I alone in finding it deeply offensive that a professional accountant would seek to liken tax avoidance with apartheid and/or slavery?

johnjenkins's picture

I'm sure Mark

johnjenkins | | Permalink

can stick up for himself but I understood the inference to be purely legal, and we all know Mark sometimes likes to shock to get his point across.

listerramjet's picture

not convinced

listerramjet | | Permalink

johnjenkins wrote:

can stick up for himself but I understood the inference to be purely legal, and we all know Mark sometimes likes to shock to get his point across.

of course tax avoidance is also purely legal - see jonathon ross and russel brand on the after effects of shock!

Jon Stow's picture

Up to a point, Lord Copper    2 thanks

Jon Stow | | Permalink

"Judge not, that ye be not judged." Matthew 7:1

I have gone on record in saying that I am uncomfortable with aggressive tax avoidance schemes, but that is because so many end in tears and those who go into them are not always properly advised of the risks of failure, the protracted correspondence with HMRC, and the heartache.

However, we live in a democratic society in contrast to old South Africa or the nineteenth century era of colonialism, so while I do not like, and do not recommend, the more extreme schemes I am not in a position to say people should not participate any more than I would say that people should be banned from smoking in their own homes even though I find the whole idea of nicotine-soaked wallpaper very distasteful.

Also as a free thinker I like to determine my own morality based on my experience, not borrow the latest fashionable one.

So, Rebecca, I do agree with you in many ways, and it is unfortunate that HMRC have seen so many staff cuts and so many of the more senior staff left are technically not up to speed.

listerramjet's picture

make or break civilisation!!!

listerramjet | | Permalink

JohnJenkins, I know governements like to think they are all powerful, but a sense of perspective please!  It is more likely that an external event, a meteorite strike or a super volcano eruption perhaps,  will break our civilisation.  Goverments will be as ineffectual as the rest of us in that regard.  After all, they can't even stop minor flooding, and for the most parts their cures are worse than the problems they think they are trying to solve!

johnjenkins's picture

Not wishing to preach

johnjenkins | | Permalink

but man is his worst enemy. This is very evident in the world today. Those that know what to do about the global economy are keeping quiet whilst most leaders are sitting on the fence. We are on the edge of a great change, which way it will go depends on the morallity of the people and the strength of the leaders to carry out their wishes.

listerramjet's picture

what to do about the global economy?

listerramjet | | Permalink

Those that know what to do - who they?  What we have learnt so far is the old lesson - politicos tinkering with markets is a sure fire recipe for disaster.

johnjenkins's picture

@listerramjet

johnjenkins | | Permalink

I don't think you really get the point. There is a world wide upheaval against the rich running our world. Every country is showing it in a different way. The last time such an upheaval occurred there was a world war, so it's not surprising that world leaders are worried.

Intentions    1 thanks

Roland195 | | Permalink

I doubt if the Flat Rate Vat scheme was ever intended to produce the savings it does for certain kinds of business. As it is intended by HMRC to be a book-keeeping simplification, yet used in the vast majority (in my experience) of cases to make financial savings this must then be unacceptable tax avoidance?

The same could be argued for your average Ltd Co. In reality, they were likely formed for tax advantages rather than commercial ones. Is this also unacceptable? Who is going to argue why the incorporation took place - limited liability or no NI on dividends?.

I am not trying to be argumentatitve or pedantic, just trying to show that you can't equate morality with the intentions of Government. HMG uses all sorts of legislation to achieve ends that it was never intended to.

 

Old Greying Accountant's picture

The flip side ...    1 thanks

Old Greying Acc... | | Permalink

... that irks me as much as the non paying of tax, is the fact that those who pay their tax (the fact the rates are too high in my opinion aside) see it p****d away by incompetent government spending, and the wasting of tax revenues is as immoral as excessive tax avoidance.

We all know the stories of £600 to change a light bulb, £50 for a ream of paper etc etc, we laugh, but many a true word ...

listerramjet's picture

not just incompetent spending

listerramjet | | Permalink

the current lot came with a promise to reduce the debt.   I guess you could be kind - its a mammoth task to spend less.  I know this as I am married!  But it does wind me up when they announce yet another way of spending my hard earned cash.

Advance DOTAS    3 thanks

bobhurn | | Permalink

Currently DOTAS allows the marketing of avoidance schemes by simply advising HMRC of the scheme.  I wonder if this should be taken a step further with schemes only being allowed to be marketed after they have been approved by HMRC or an independent body.

johnjenkins's picture

I thought

johnjenkins | | Permalink

every tax avoidance scheme had to be run past HMRC. The problem is that if it is legal how can HMRC turn it down.

Reputational damage

The Black Knight | | Permalink

Whether you like it or not we will all be tarred by the same brush. Much in the same way as your local bank manager is now a greedy banker.

I am sure some of these ambulance chasers are not accountants because our professional ethics/ rulebooks would not allow us to charge on a percentage basis at the very least.

Much of it comes down to what the public think we do all day.

Recent comments from friends / public

"what about all that Jimmy Carr fuss? You weren't involved in that were you?"

Never been near one apart from reading a prospectus out of curiosity.

" I can add up and fill in a form so don't need an accountant I just need you to explain how to do it."   HMRC had not been helpful and had sent the SATR form back because it was wrong. Foreign income and residence issues involved, and prospective client did not even understand the words. How to do it was expected for free.

Confusing the terms Evasion and Avoidance does not help, but is what happens when you dumb things down to the intelligence level of an MP or your regular pasty eater.

How on earth are they ever going to get to grips with the difference between structuring your affairs in a tax efficient way and contrived paper exercise avoidance schemes.

Forget about substance over form, GAAP, legal v's illegal etc etc etc  THAT'S WHY WE ARE NEEDED not that anyone knows that.

The Flat Rate VAT scheme has    1 thanks

Eric T | | Permalink

The Flat Rate VAT scheme has always been promoted by the authorities as being Revenue Neutral.

 

Although an individual business may see some reductions in its overall VAT bills when using the VAT Flat Rate Scheme, the scheme should also reduce the amount of time and effort required to be spent by VAT Officials in ensuring Input VAT reclaims by small traders are compliant - and frees up those same VAT officials to engage in the checking of larger businesses involved in riskier areas of trade – with a resultant higher expectation of VAT yields following those investigations.

 

I do not see that making use of an approved government scheme - in the way intended by Government - can be equated with a marginal tax avoidance scheme which seeks to exploit a perceived flaw in the legislation.

 They are two quite different things, in my view.   

johnjenkins's picture

The only reason flat rate vat schemes

johnjenkins | | Permalink

are seen as neutral is that the increase in turnover (decrease in vat) with resulting increase in profit gets taxed at 28 or 29%, maybe even higher rate tax band. 

That's not neutral

The Black Knight | | Permalink

Might be seen like it by HMRC and MP's alike.It does not surprise me though bit like increasing your phone bill to save tax argument I must explain at least once a week.

but no one would bother with it if it was neutral.

The error percentage goes up because most get the turnover and the percentage figures wrong when left to their own devices.

An example of how simplification works. Does anyone imagine the correct turnover figure (or profit) gets to the tax return?

So what is the point of DOTAS then?    1 thanks

aidan.sergent | | Permalink

How long has DOTAS been in existence?

If its purpose was anything other than providing a clear indication to HMRC of what people were up to at the margins then what was it for?

HMRC have the opportunity together with H M Treasury on at least an annual basis to seek to amend the gaps in legislation that provide the avoidance scheme opportunities.

In that case either K2 is deemed acceptable tax planning, or we are in the time lag period between it being identified as unacceptable planning and something being done about it.

What is to stop HMRC publicising those DOTAS schemes it considers abusive and subject to corrective change in the law? Are they concerned that there will be a flight to such schemes whilst "legal" rather than an avoidance by practitioners and taxpayers of such schemes that are "on the radar"?   

As to staffing, what happened to the £900m budget to deal with evasion. 

I agree with Rebecca that it

trecar | | Permalink

I agree with Rebecca that it is not for us to take a stance on the moral issue. Our training does not include morality so it does not seem to me that we are in a position to advise others on such issues. However, like her I think we are entitled to take a stance from our own standpoint and should be guided by that. My own is that having had my first exposure to such schemes back in the seventies I learnt to be very wary of them. Many of the schemes rely on loopholes in the law and are thus vulnerable to changes in legislation. The aftermath is often messier and more expensive than simple compliance.

However, I do think it worth pointing out that government first opened the stable door when it sought to exact inordinately high rates of taxation in the fifties and later. The last government introduced myriad numbers of taxes in an attempt to increase it's share of the pot. The vast increase in tax legislation since the mid nineties, which has continued to the present day, does not send a message of fairness to the nation. I despaired when I saw the adverts from HMRC telling people that it was easy to fill in your tax return on-line and inviting them to do so. If it was so easy why do we need such a massive tax code? In my opinion that type of behaviour equally suffers from moral laxity. So perhaps government should leave comments and judgement on the morality of taxation avoidance to others better suited to it.

Smoke , mirrors and spin

The Black Knight | | Permalink

It is Doubtful whether any anti avoidance or anti evasion measures have got past the reams of wasted paper (or vellum if they still use that)

I can think of

Managed service companies

Deliberate defaulters

900M to deal with evasion.

DOTAS

Money laundering reporting

The companies act 2006

To start with.

In Fact is anything real except Heat magazine and celebrity houses of parliament?

Many of these schemes appear not to be hallmarked and have no numbers despite being in the UK ?

we could start a never ending list

The Black Knight | | Permalink

Money/finance for small business

Perhaps HMRC believe that these schemes are never implemented. Same as it works in government !!

 

Hit the nail on the head

Roland195 | | Permalink

Eric T wrote:

The Flat Rate VAT scheme has always been promoted by the authorities as being Revenue Neutral.

 

Although an individual business may see some reductions in its overall VAT bills when using the VAT Flat Rate Scheme, the scheme should also reduce the amount of time and effort required to be spent by VAT Officials in ensuring Input VAT reclaims by small traders are compliant - and frees up those same VAT officials to engage in the checking of larger businesses involved in riskier areas of trade – with a resultant higher expectation of VAT yields following those investigations.

 

I do not see that making use of an approved government scheme - in the way intended by Government - can be equated with a marginal tax avoidance scheme which seeks to exploit a perceived flaw in the legislation.

 They are two quite different things, in my view.   

You have hit the nail on the head here but in a different way you intended. The gains made by businesses (far more than marginal in my experience - up to £12k per year at extremes) are the result of the exploitation of a flaw in the legislation - HMRC have clearly gotten their sums wrong with regard to the Flat Rate Scheme as I cannot believe they would mean to be so generous.

So we can conclude that this exploitation of the system is OK (In fact, I think even Mark would agree that we could be professionaly negligent for not advising on the use of this scheme) but others are wrong? 

 

 

 

 

A moral issue    1 thanks

ken of chesterl... | | Permalink

 "It is a moral issue!" thundered the Times about 50 years ago, when nothing was on the front page except advertisments. But as Rebecca rightly says, we aren't here to make our clients' moral judgements for them.

Every article in Times Online has the opportunity to comment, and I have put in my two penn'th (old money of course!), usually trying to explain the differience between tax avoidance,  tax planning, and tax evasion. I would hope, Rebecca, that if  you were to send a letter in the form of your excellent article above, he would feel  bound to publish it on the letters page.

 

.

Moral issue? thats all that's left    2 thanks

The Black Knight | | Permalink

What with Avoidance and Evasion at record levels the only people paying are those that have some morality left.

I read recently that the tax tribunals have a backlog of cases that will take 38 years to clear! How ridiculous is that?

be good if Accounting WEB could pick up that story - think it was in the times blog a few days ago.

Has self assessment finally ground to a halt? Do we have too many taxpayers deciding what their own rules are and how much tax they would like to pay? Certainly there are not enough resources to police the system.

Which is why we are seeing David Cameron bleeting about Morals because the law (pages and pages and pages of it) has failed!

 

 

Nick E Morgan's picture

Difficult?    2 thanks

Nick E Morgan | | Permalink

Honestly, how difficult can it be to find and close down these organisations that help rich people pay less tax than their cleaners?

They can't be difficult to find, well The Times managed it without too much difficulty!

So is it difficult to change the law to make them illegal?

I think that this government simply doesn’t want to annoy a large group of very rich and powerful people.

Nick

www.tax-hell.co.uk

johnjenkins's picture

It would be a start

johnjenkins | | Permalink

if government, HMRC got back to where we were before GB (wait, what's that I hear you say "TB is making a comeback") ruined everthing.

ShirleyM's picture

@johnjenkins    1 thanks

ShirleyM | | Permalink

I think it goes back much further than that to Maggies day. She was the one who wanted London to be the be-all and end-all of the UK, and encouraged greed, greed amd more greed, and that the markets would sort out the fair pay issue.

Look what we have now!

All politicians (not just the two main parties) are the puppets of large business and the wealthy!

johnjenkins's picture

If that was the case ShirleyM

johnjenkins | | Permalink

why didn't GB do something about it? They had a big enough majority to do whatever they wanted.

Maggie promoted enterprise in whatever shape or form and she put in place the tools to work with. John Major started the rot and GB followed suite. Look what's happening now DC and GO are following on from Labour. No politician has the guts to change the way things are. What are we told "another couple of years and we will be ok. I doubt that very much. Question time last night really summed it up for me. There is no trust in the financial institutions or government. So DC looks like you got your work cut out.

listerramjet's picture

but what is the real inequality?    1 thanks

listerramjet | | Permalink

for those earning enough then there is a ready supply of avoidance schemes,  but for most people avoidance schemes would cost more than the tax they save.  All they have left is evasion.  How unfair is that?

johnjenkins's picture

That has always been the case though.    1 thanks

johnjenkins | | Permalink

What is different is that the SME's have been cracked down on so hard because HMRC didn't have the wherewithall to catch the big boys. Suddenly DC is trying to redress the balance. Fat chance.

ShirleyM's picture

I partly agree with you John    2 thanks

ShirleyM | | Permalink

None of the politicians have the guts to really sort it out.

I fear it really will be mass strikes and riots before the balance is restored. The greed of the wealthy, and the large companies, has to be stopped.

Greed, and self interest, is contagious and while ever it is allowed to continue it will only encourage more and more people to fiddle, lie and cheat.

 

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